EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

09.03.18

RALIA, Inventor Protection Act, STRONGER Patents Act and Other Attacks on PTAB (Because It Raises the Patent Bar)

Posted in America, Deception, Law, Patents at 1:33 am by Dr. Roy Schestowitz

Lobbyists and bribed politicians still attempt to undo patent reform in Washington

Don't enter

Summary: Anti-PTAB legislations (whose sole purpose is to lower patent quality) try to make their way past common sense; the patent microcosm is boosting these while courts carry on doing their job, which nowadays more often than not involves rejection of erroneously-granted US patents

THE USPTO would almost certainly be granting patents like a patent-printing machine if it wasn’t for constant scrutiny from patent courts and groups like the EFF, CCIA and so on. Sadly, as we’ve just noted, 35 U.S.C. § 101 isn’t taken seriously enough by the Office. The new Director, a litigation person whose firm worked for Donald Trump, keeps trying to water it down. It cannot be done unless courts leave an opening/gap to be cherry-picked; as things stand, SCOTUS supports Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) and the Federal Circuit gave away nothing but Berkheimer, which the Director (Iancu) was happy to exploit irrespective of the facts (Berkheimer has not changed anything in the courts).

We’ve been carefully watching the latest attacks on patent quality. Watchtroll, for instance, was belatedly catching up with Click-To-Call at PTAB (among other news that may mean patent law firms will carry on rotting away). Robert Schaffer wrote about IPR time-bar* [1, 2] on a couple of occasions and together with his colleague Joseph Robinson he was covering the matters/affairs of the Federal Circuit (CAFC) in light of recent cases, such as this 35 U.S.C. § 285 case (typically about whether the accused gets awarded legal fees by the trigger-happy accuser). We’ve pretty much covered all these cases before or at least mentioned these in passing. Joseph Robinson wrote about another important CAFC case — one wherein we saw software patents invalidated by a high court. The defendant, BuySeasons, did a good job leveraging the law against US Patents numbers 6,035,294, 6,243,699, and 6,195,652 [1, 2]. Quoting Watchtroll:

On August 15, 2018, the Federal Circuit affirmed the invalidation of BSG Tech LLC’s (“BSG”) patents as ineligible subject matter. See BSG Tech LLC v. Buyseasons, Inc., No. 2017-1980, 2018 WL 3862646 (Fed. Cir. Aug. 15, 2018) (before Reyna, Wallach, and Hughes, J.) (opinion by Hughes, J.).

BSG asserted three patents with similar specifications that were directed to a “self-evolving generic index” for organizing information stored in a database — U.S. Patents No. 6,035,294, 6,243,699, and 6,195,652. The patents were “self-evolving” because users of the database could “add new parameters for use in describing items”, with guidance from the system, which would allow the database to be searched according to the new and existing parameters.

We generally prefer not to quote Watchtroll, but in order to understand what patent maximalists are up to it’s helpful to keep an eye on Watchtroll. Last week they used the term “IP Assets” in the headline (three lies in two words). Katharine Wolanyk generally alludes to universities using taxpayers-funded research to feed patent trolls that then attack the public as “Legal Finance” (what a breathtaking euphemism!). Her innovation seems to be that of euphemisms for bad practices that should be banned if not severely punished for (penalties, fines, maybe even sanctions).

Fenwick & West LLP’s Nina Srejovic and Charlene M. Morrow wrote a few days ago about IPRs in relation to appeals; This too was about a recent CAFC case. To quote:

The Federal Circuit further restricted a petitioner’s ability to appeal a decision by the Patent and Trademark Appeal Board upholding the validity of a patent. The court this month found in JTEKT v. GKN Automotive that a competitor who filed a petition for inter partes review could not appeal the PTAB’s validity determination because its product design was not definite enough to create a concrete and substantial risk of infringement or the likelihood of a claim of infringement. If this line of decisions stands, it will make it harder for competitors to clear the field of conflicting patents that they believe are invalid, as there would be no ability to appeal from an adverse Board decision.

They generally try anything they can to thwart PTAB and thus defend invalid/bogus patents from scrutiny. Gene Luoma, writing for Watchtroll yesterday (a Sunday), promotes the misleadingly-named “Inventor Protection Act” — one among several bills striving to take down patents like his. “This is why we need your support to help us restore our patent rights,” he concluded, mistaking patents for “rights” (they’re not rights, technically and legally speaking). He pleaded: “Please help us in our fight to pass H.R. 6557, the Inventor Protection Act, which has been introduced into the House of Representatives. After a decade of destruction of our patent rights, this bill restores patent rights to inventors like me who own their patents, helping us to continue supporting our families with the money earned from our inventions.”

This is nonsense. He also uses his disability to add an angle that has nothing to do with his patent/s; sympathy-garnering exercise at best. If his patent is worth what he believes, why should he fear PTAB? In our experience, people who loathe PTAB are those whose patents are of questionable quality (and deep inside they know it).

A few days earlier the American Enterprise Institute wrote about RALIA, another anti-PTAB bill. Michael Rosen from this patent zealots’ front group (American Enterprise Institute has always been misleadingly named) is trying to reduce patent quality and help patent trolls, not enterprises. Here is what he wrote (soon to be boosted by patent maximalists):

Shortly after several new patent reform bills were introduced in Congress over the summer, a new, even more radical piece of legislation has entered the scene.

[...]

RALIA would also rewrite the statute on patent eligibility, making it easier to obtain software and so-called business method patents, a process that the Supreme Court’s 2014 landmark Alice decision has strongly affected. The legislation contends that “the Supreme Court’s recent jurisprudence concerning subject matter patentability has harmed the progress of science and the useful arts” and loosens its strictures.

No, it does the exact opposite. But don’t let facts get in the way of career lobbyists.

Russell Slifer, part of the patent microcosm, then defines “bad” as what’s bad for the litigation ‘industry’. The lobbyists’ media of choice, The Hill, seems very happy if not eager to let these vultures do their lobbying. Slifer promotes the STRONGER [sic] Patents Act as follows: “One good place to start is the Support Technology and Research for Our Nation’s Growth and Economic Resilience (STRONGER) Patents Act, H.R. 5340, introduced by Reps. Steve Stivers (R-Ohio) and Bill Foster (D-Ill.) and its companion Senate bill, S.1390, introduced last year by Sen. Chris Coons (D-Del.). These bills address some of the negative unintended consequences of the 2011 America Invents Act. To truly return America as a world leader in intellectual property protection, Congress must resolve to reverse the Supreme Court and allow our new industries to protect their innovations in the U.S, not China and Europe.”

These are all just anti-PTAB bills whose net effect is reduction in quality assessment and decline in patent quality. They rely on the perception that there’s anger, that there’s a scandal, and that there are feuds.

Alluding to last month’s RPX setback and Judge Reyna’s role in an earlier case, McDermott Will & Emery’s Brian A. Jones wrote about news several months too late (almost two months). Why now? To quote:

Addressing whether an inter partes review (IPR) petition was time barred under 35 USC § 315(b), the US Court of Appeals for the Federal Circuit vacated and remanded a finding by the Patent Trial and Appeal Board (PTAB) that the petitioner was not a real party in interest to the entity that had been served with an infringement complaint in district court more than one year earlier. Applications in Internet Time, LLC v. RPX Corp., Case Nos. 17-1698, -1699, -1701 (Fed. Cir. July 9, 2018) (O’Malley, J) (Reyna, J, concurring).

Applications in Internet Time (AIT) sued Salesforce.com, a software company, for patent infringement. Salesforce was served with a copy of the complaint on November 20, 2013.

[...]

Judge Reyna wrote separately to point out an independent ground for vacating the PTAB’s decision, namely that it failed to address whether RPX was also a “privy” of Salesforce. A petitioner is time barred under § 315(b) from filing a petition more than one year after the “petitioner, the real party in interest, or privy of the petitioner is served with a complaint.” Judge Reyna explained that a number of additional factors must be considered to determine privity, including whether a legal relationship exists between the parties or whether one party acted as a proxy/representative for the other party. In the case of RPX and Salesforce, a contractual relationship existed, and RPX may have been acting as Salesforce’s proxy. Therefore, Judge Reyna would have instructed the PTAB to also thoroughly review whether RPX and Salesforce were in privity in these circumstances.

This is one of those rare PTAB cases where patent maximalists have something to gain. They will carry on cherry-picking and then boosting such cases. Knowing that politicians soon return to work (many come back tomorrow), they want to provoke them into endorsement of anti-PTAB bills.
___
* In his latest PTAB post, Kevin E. Noonan provided a more balanced interpretation, including some background:

Patent law has traditionally been considered to be fraught with traps for the unwary, which in practice just means that it is unwise to assume anything (see Carl S. Koening, “Clarifying Patent Terminology and Patent Concepts – An Introduction to Some Basic Concepts and Doctrine,” 15 Cath. U. L. Rev. 1 (1966)). Petitioner for an inter partes review proceeding, Vizio, Inc., v. ATI Technologies ULC suffered the consequences of one of those traps, when its petition for review of U.S. Patent No. 7,633,506 was deemed untimely under 35 U.S.C. § 315(b) because the petition was not filed within one year of Patent Owner filing suit against Petitioner Vizio. While a seemingly simple docketing matter, in this case the error arose over when (i.e., what date) the complaint was filed.

As set forth in the Board’s Decision denying institution, the facts are these. Vizio filed its IPR petition on February 1, 2017, one year after receiving the complaint. Patent Owner filed an affidavit of service, establishing that Patent Owner had mailed the complaint to Vizio on January 30, 2017. The question before the Board was whether the one-year time period under § 315(b) for filing an IPR petition ran from the date of mailing by Patent Owner or the date of receipt of the complaint by Petitioner Vizio.

To answer this question, the Board looked to Federal Rule of Civil Procedure 4(h)(1)(A), which states that a corporation is served “in the manner prescribed by Rule 4(e)(1) for serving an individual.” Fed. R. Civ. P. 4(e)(1) states that service on an individual under the Rules is done “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located” (or where service is made). Thus, the Board reasoned, the time and manner where service was accomplished was a matter of Delaware law (where the Patent Owner was incorporated).

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email
  • Slashdot

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. Links 23/10/2020: Turing Pi 2, GNU Parallel 20201022

    Links for the day



  2. IRC Proceedings: Thursday, October 22, 2020

    IRC logs for Thursday, October 22, 2020



  3. Links 23/10/2020: 'Groovy Gorilla' Everywhere in the News

    Links for the day



  4. For Better 'Tech Rights' in the United States (and the World at Large) the 'Orange Man' Needs to Go

    With less than a fortnight before election day we explain our stance from a purely tech-related rationale



  5. [Meme] Microsoft Never 'Brought' Skype to GNU/Linux (It Just Bought Skype) and It Never 'Brought' Edge to GNU/Linux Either (Google Did)

    Foolish media or gullible 'journalists' are giving Microsoft credit for other people's work; this isn't the first time either, but it helps perpetuate lies such as "Microsoft loves Linux" (so who cares about facts anyway?)



  6. It's Going to be a Long, Long Winter

    Today we revert back to lock-down mode; we're reflecting and pondering what comes next



  7. TechRadar is an Irresponsible Clickbait and Misinformation Site Disguised as 'News'

    TechRadar is no tech and no radar, either. It's just an opportunistic click-harvesting machine, disguised as a source of "news"; today we deal with the latest example (among many).



  8. Links 22/10/2020: LibreOffice 6.4.7, Septor 2020.5, Ubuntu 20.10 Released, FreeBSD Quarterly Status Report

    Links for the day



  9. IRC Proceedings: Wednesday, October 21, 2020

    IRC logs for Wednesday, October 21, 2020



  10. Living Humbly (With Older Technology or None) is More Compatible With Privacy- and Freedom-Respecting Technological Lifestyle

    Simplicity sometimes trumps so-called 'novelty', especially when it comes to human rights and users' freedom



  11. Reasons Why You (and Everybody Else) Should Join the Fight for Software Freedom

    Society is being closely watched and controlled (more so during/after the latest pandemic) and people must carefully consider the true importance of resisting proprietary technology (controlled remotely by state actors)



  12. Ways and Means to Reduce One's Dependency on Google's Various Monopolies and Near-Monopolies

    Getting rid of Google means a lot more than embracing DumbDumbGo (DDG) or some other sites that spy just like Google; we're taking stock of some options



  13. The European Commission is Still M.I.A. Regarding EPO Corruption (and the EPO's Management Plays Dirty, as Always)

    There's no change in the EU; the EUIPO and EPO enjoy complete and total immunity/impunity, with the Commission being manned by those who are deeply complicit



  14. 10 Reasons Why All This 'Edge for Linux' Coverage is a Total Farce

    The fake hype surrounding "Edge" is an inauthentic hype/buzz campaign made to coincide with anti-Google sentiments spread by Microsoft front/pressure groups



  15. Microsoft's IIS Has Collapsed Again This Past Month (and IIS Will Not and Cannot Survive This Way)

    Netcraft shows that Microsoft's decline further accelerates in the Web servers space; IIS is becoming financially unviable



  16. Links 21/10/2020: Alpine 3.12.1, Tor Browser 10.0.2

    Links for the day



  17. [Meme] US Department of Justice Should Have Taken on Microsoft Again, Not Google

    When lobbying, connections and political sway determine the actions of the American government it's hardly surprising that Bill Gates gets the Trump administration to fight for him (to make him even richer)



  18. [Meme] Banning Words, Gaslighting Volunteers

    What happens when institutions are themselves in violation of a CoC (institutional violation) and massive corporations that fund such institutional violations are defending demonisation of the individual (squashing ‘uncomfortable’ voices, even volunteers’)



  19. IRC Proceedings: Tuesday, October 20, 2020

    IRC logs for Tuesday, October 20, 2020



  20. Links 21/10/2020: $8000 GNU/Linux Desktop, Tails 4.12, Open Infrastructure Foundation and Firefox Release

    Links for the day



  21. Never Feed the Internet Trolls, No Matter How Tempting It Becomes

    The tactics for removing critics of abuse (by framing them as "abusive") have evolved a lot in recent years; the best course of action is to never entertain provocateurs in any way whatsoever (just ignore them, give them no attention which they crave and feed on)



  22. Bill Gates: “I'm Not a Lawyer” (He Dropped Out of College, Where He Studied Law Before and After Breaking the Law Chronically)

    How Microsoft blackmailed other companies into supporting nothing but Microsoft and Windows; Bill Gates repeatedly lied to the interrogators about it, then said "I'm not a lawyer" (IANAL) even though he went to college to become one, just like his father who died last month



  23. Microsoft Has Not Changed Since Being Investigated (and Prosecuted) for Crimes at a Federal Level

    The media keeps telling us a bunch of worthless junk about Gates "saving the world" and Microsoft becoming a "nice" and "gentle" (or "soft") company, but nothing could be further from the truth



  24. Stick a Fork in the Open Source Initiative (OSI). OSI is Dead. Microsoft Bought OSI.

    OSI leadership proudly showing early signs of 'prognosis negative'; the OSI can never and will never recover from this; Microsoft killed it



  25. Links 20/10/2020: OpenZFS 2.0 RC4 and Trisquel GNU/Linux 9.0

    Links for the day



  26. People With God Complex Must Never be Allowed in Positions of Power

    The attack on Linus Torvalds — an attack which at his own expense/peril he fails to recognise/acknowledge — seeks to put both projects that he founded right in Microsoft’s palm



  27. IRC Proceedings: Monday, October 19, 2020

    IRC logs for Monday, October 19, 2020



  28. Corporate Media: GNU/Linux Can Only Succeed If/When Microsoft Dominates Everything Inside It

    The corporate takeover (or handover) of GNU/Linux would not have been possible without complicity of corruptible (bribed) media



  29. Bill Gates Explains How Microsoft and Apple Leverage Software Patents in Their Cross-Licensing Deals (to Perpetuate Duopoly/Shared Monopoly)

    A look back at Apple's and Microsoft's use or misuse of bogus software patents in bargaining (in effect excluding those who have not amassed tens of thousands of patents)



  30. Standards and Choices

    GNU/Linux is a very standards-based platform; having lots of choices (e.g. distros to choose from) isn’t the principal problem — or nowhere near the extent sabotage and illegal tactics by Microsoft have been


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts